Legality of war on Iraq

Channel 4 News have run a story similar to the Guardian's lead item today:


The attorney general, Lord Goldsmith, warned less than two weeks before the invasion of Iraq that military action could be ruled illegal.

The government was so concerned that it might be prosecuted it set up a team of lawyers to prepare for legal action in an international court.

And a parliamentary answer issued days before the war in the name of Lord Goldsmith - but presented by ministers as his official opinion before the crucial Commons vote - was drawn up in Downing Street, not in the attorney general's chambers.

The full picture of how the government manipulated the legal justification for war, and political pressure placed on its most senior law officer, is revealed in the Guardian today.

It appears that Lord Goldsmith never wrote an unequivocal formal legal opinion that the invasion was lawful, as demanded by Lord Boyce, chief of defence staff at the time.

The Guardian can also disclose that in her letter of resignation in protest against the war, Elizabeth Wilmshurst, deputy legal adviser at the Foreign Office, described the planned invasion of Iraq as a "crime of aggression".

She said she could not agree to military action in circumstances she described as "so detrimental to the international order and the rule of law".

Her uncompromising comments, and disclosures about Lord Goldsmith's relations with ministers in the run-up to war, appear in a book by Philippe Sands, a QC in Cherie Booth's Matrix chambers and professor of international law at University College London.

Lord Goldsmith warned Tony Blair in a document on March 7 2003 that the use of force against Iraq could be illegal. It would be safer to have a second UN resolution explicitly sanctioning military action.

"So concerned was the government about the possibility of such a case that it took steps to put together a legal team to prepare for possible international litigation," writes Mr Sands.

The government has refused to publish the March 7 document. It was circulated to only a very few senior ministers. All Lord Goldsmith gave the cab inet was a later oral presentation of a parliamentary answer issued under his name on March 17.

This appears contrary to the official ministerial code, which states that the complete text of opinions by the government's law officers should be seen by the full cabinet.

On March 13 2003, Lord Goldsmith told Lord Falconer, then a Home Office minister, and Baroness Morgan, Mr Blair's director of political and government relations, that he believed an invasion would, after all, be legal without a new UN security council resolution, according to Mr Sands.

On March 17, in response to a question from Baroness Ramsay, a Labour peer, Lord Goldsmith stated that it was "plain" Iraq continued to be in material breach of UN resolution 1441.

"Plain to whom?' asks Mr Sands. It is clear, he says, that Lord Goldsmith's answer was "neither a summary nor a precis of any of the earlier advices which the attorney general had provided".

He adds: "The March 17 statement does not seem to have been accompanied by a formal and complete legal opinion or advice in the usual sense, whether written by the attorney general, or independently by a barrister retained by him".

Separately, the Guardian has learned that Lord Goldsmith told the inquiry into the use of intelligence in the run-up to war that his meeting with Lord Falconer and Baroness Morgan was an informal one. He did not know whether it was officially minuted.

Lord Goldsmith also made clear he did not draw up the March 17 written parliamentary answer. They "set out my view", he told the Butler inquiry, referring to Lord Falconer and Baroness Morgan.

Yet the following day, March 18, that answer was described in the Commons order paper as the attorney general's "opinion". During the debate, influential Labour backbenchers and the Conservative frontbench said it was an important factor behind their decision to vote for war.

Robin Cook, the former foreign secretary and leader of the Commons, yesterday described the Guardian's disclosure as alarming. "It dramatically reveals the extent to which the legal opinion on the war was the product of a political process." he said.

The case for seeing the attorney general's original advice was now overwhelming, Mr Cook added. "What was served up to parliament as the view of the attorney general turned out to be the view of two of the closest aides of the prime minister," he said.

Sir Menzies Campbell, the Liberal Democrat foreign affairs spokesman, said the government's position had been seriously undermined. "The substance of the attorney general's advice, and the process by which it was partially published, simply do not stand up to scrutiny," he said.

Sir Menzies added: "The issue is all the more serious since the government motion passed by the House of Commons on March 18 2003, endorsing military action against Iraq, was expressly based on that advice."

He continued: "The public interest, which the government claims justifies non-publication of the whole of the advice, can only be served now by the fullest disclosure."

Lord Goldsmith twice changed his view in the weeks up to the invasion. He wrote to Mr Blair on March 14 2003, saying it was "essential" that "strong evidence" existed that Iraq was still producing weapons of mass destruction.

The next day, the prime minister replied, saying: "This is to confirm it is indeed the prime minister's unequivocal view that Iraq is in further material breach of its obligations."

The same day, Lord Boyce got the unequivocal advice he says he was after in a two-line note from the attorney gen eral's office. The extent of concern among military chiefs is reflected by Gen Sir Mike Jackson, head of the army, quoted by Peter Hennessy, professor of contemporary history at Queen Mary College, London. "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars," said Sir Mike. "I have no intention of ending up in the next cell to him in the Hague."

Mr Sands records that Lord Goldsmith visited Washington in February 2003 when he met John Bellinger, legal adviser to the White House National Security Council. An official later told Mr Sands: "We had trouble with your attorney, we got him there eventually."

A spokeswoman for Lord Goldsmith said yesterday: "The attorney has said on many occasions he is not going to discuss process issues". The March 17 parliamentary answer was the "attorney's own answer", she said adding that he would not discuss the processes of how the document was drawn up.

The Department for Constitutional Affairs said it could not say if Lord Falconer had a role in drawing up the answer.
Channel 4 went further with a leaked document from the Butler Inquiry which indicated that the Attorney General had not altered his formal legal advice of 7 Mar 03 which stated that a new resolution was necessary; he had merely written a short statement outlining a new view on 17 Mar 03. It is claimed that No 10 actually wrote the short statement of 17 Mar 03.

It is necessary to be careful on this forum as Service personnel (former, regular and reservist) launching into (perhaps self serving) public tirades causes damage to both the uniform and the very reasonable case for disbelieving the case presented for military action, as a certain ex-TA soldier demonstrated. There are also many UK military personnel in theatre. Nevertheless this is an important issue that should be raised and discussed.

It is incumbent on the government to release the full legal advice, otherwise they will encounter major problems in trying to mobilise support for any future military action. Whether this is accompanied by resignations would be a matter for the ministers involved, but this would seem inevitable.
Given the current government's obsession with 'public opinion', one can't help feeling that had the advice been unequivocal, it would have been 'leaked' in a suitable and pre-emptory fashion.

So we have committed 'A War of Agression' and now junior Toms are found guilty of acts of "terror"
Don't hang the poor Tom but string up the Man who ordered it all.
The key question that should be asked by all and sundry in uniform, from the C4 News item and the Newsnight item last night and the Guardian article is:

Given that TB was unwilling to show the cabinet the full document (7 Mar 03) for fear that he could not trust his cabinet, [trust them not to leak it? or to vote for war in cabinet?] is whether the 7 Mar document or the parliamentary answer was shown to the CDS.

Several other questions then arise regarding precedent and or which particular element of International Law was used by CDS and his Legal team to determine that the operation was legal.

The general constitutional question that arises is:

If the cabinet did not see the 7 Mar document, as would now seem to the case, has the collective responsibility been taken away from the cabinet and does sole responsibility rests with the PM only?

Drawing this to a logical conclusion, if the 7 Mar document is extant as the full legal opinion of the HMG, when is someone going to take MHG to the ICC? Then if found guilty does the PM resign or should the whole government resign? In addition the PM technically should resign along with Lord Goldsmith because under oath (if this evidence to the Butler enquiry is accurate) both have breached the ministerial code of conduct.

I see no reason at a political level why the PM is in power. Since parliament did not have oversight of the 7 Mar document; whether they voted for war is irrelevant, since they made an informed opinion based on only partial information. The reason they did not have access was a decision made by the PM.

All in all surely it is time for proper constitution, so the weasel politicians do not pull stunts like this in future. Remember Mrs T at the end of the Falkland conflict? She was relived that the OP was a success as she knew resignation for her and cabinet was the option in the event of anything but total victory.

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